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The American Society for Testing and Materials (ASTM) International recently published a new standard, which provides guidance on complying with the “continuing obligation” requirements that are found in certain statutory defenses to CERCLA liability such as the innocent landowner defense, contiguous property owner defense and the bona fide prospective purchaser defense. Each of the defenses requires that the property owner fulfill certain continuing obligations in order to satisfy and maintain its defense.

The new ASTM standard focuses on the continuing obligations pertaining to land use restrictions, institutional controls, and taking reasonable steps, and states that its objective is to “formulate and clarify suggested industry methods and procedures for identifying and satisfying continuing obligations that are practical, efficient and reasonable.” The ASTM standard is likely much more involved (i.e., the development of a conceptual site model and a continuing obligation plan) than what is currently being performed by many property owners. The U.S. EPA has not incorporated the ASTM standard into the CERCLA liability protections and therefore compliance with the ASTM standard is currently voluntary. However, IDEM also issues comfort letters to prospective purchasers which provides IDEM’s determination of what continuing obligations are necessary at the property. It is unknown whether IDEM may begin requiring adherence to this standard when it sets forth the continuing obligations in its comfort letters.

Because there are many unsettled legal issues that arise when determining the applicability of any of CERCLA’s liability protections and whether any continuing obligations exist, the ASTM standard suggests that property owners or prospective purchasers seek the advice of legal counsel when making these determinations. If you have questions about these issues, please contact the Environmental and Natural Resources Practice Group at Bingham Greenebaum Doll.

Andy has provided environmental legal services to industrial, commercial and governmental clients for over 30 years. Andy's practice is concentrated in environmental law. He assists clients with permitting, remediation ...